Dabilis v. Hillsborough County

John Dabilis, as Parent and Next Friend of Thomas Dabilisv.Hillsborough County, et al. Opinion No. 2017 DNH 059

ORDER

Joseph
DiClerico, Jr. United States District Judge.

John
Dabilis brought federal civil rights claims and state law
claims against Hillsborough County and corrections officers
at the Hillsborough County Jail, arising from events that
occurred when Dabilis's son, Thomas Dabilis, was detained
at the jail. In response to the defendants' motions for
summary judgment, Dabilis objects only to summary judgment on
his claim against Hillsborough County under the Americans
with Disabilities Act (“ADA”) and the
Rehabilitation Act (“RA”), Count
III.[1]
Because Dabilis does not oppose summary judgment on the other
claims, which are alleged in Counts I, II, IV, V, VI, and VII
of the complaint, those claims are dismissed.

Standard
of Review

Summary
judgment is appropriate when the moving party “shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “A genuine dispute is one that a
reasonable fact-finder could resolve in favor of either party
and a material fact is one that could affect the outcome of
the case.” Flood v. Bank of Am. Corp., 780
F.3d 1, 7 (1st Cir. 2015). Reasonable inferences are taken in
the light most favorable to the nonmoving party, but
unsupported speculation and evidence that “is less than
significantly probative” are not sufficient to avoid
summary judgment. Planadeball v. Wyndham Vacation
Resorts, Inc.,793 F.3d 169, 174 (1st Cir. 2015)
(internal quotation marks omitted).

Background

Under
the local rules of this district, a party moving for summary
judgment must “incorporate a short and concise
statement of material facts, supported by appropriate record
citations, as to which the moving party contends there is no
genuine issue to be tried.” LR 56.1(a). In response, a
party opposing summary judgment must “incorporate a
short and concise statement of material facts, supported by
appropriate record citations, as to which the adverse party
contends a genuine dispute exists so as to require a
trial.” LR. 56.1(b). “All properly supported
material facts set forth in the moving party's factual
statement may be deemed admitted unless properly opposed by
the adverse party.” Id.

Hillsborough
County did not incorporate a factual statement in its
memorandum in support of its motion for summary judgment, as
required under the local rules. Instead, Hillsborough County
incorporated by reference the factual statement provided in
support of a separate motion for summary judgment that was
filed by the individual defendants.[2] Dabilis did not object to
the nonconforming memorandum provided by Hillsborough County
and did not provide a factual statement in opposition to
either motion for summary judgment. Therefore, Dabilis is
deemed to have admitted the properly supported facts in
Hillsborough County's “incorporated”
statement of facts.

Thomas
Dabilis was arrested by Nashua police during the evening of
July 29, 2013, and was taken to Hillsborough County Jail for
booking as a pre-trial detainee.[3] Because of Thomas's
behavior during booking, he was “flagged” and was
seen by Nurse Martin. Martin consulted by telephone with a
mental health clinician, Christine Mellnick, and placed
Thomas on fifteen minute behavioral watches for his safety.
Martin also recorded Thomas's medical history.

Thomas
was placed into a cell on unit 2-A at about 2:40
a.m.[4]
During his rounds, Officer George Zarzycki saw that Thomas
was sliding his legs out under the door of his cell and
asking for help. At 8:10 a.m., Thomas asked to speak with a
nurse. Nurse Lynda Wheeler was informed about Thomas's
erratic behavior, odd comments, statements suggesting self
harm, and the behavioral watch. Officer Todd Gardner wrote on
the watch sheets that Thomas was not making sense and was
talking to people who were not there.

Nurse
Wheeler went to Thomas's cell. During their interaction,
Thomas made statements about killing himself. Nurse Wheeler
decided that he required a more intensive watch, called a
“special watch, ” and should be changed into a
safety smock to avoid risks of hanging.

To
accomplish Nurse Wheeler's directives, the staff had to
change Thomas's clothes and move him to a different cell.
When the officers came to Thomas's cell, he told them
that he was frozen and could not comply with their order to
come to the cell door. The officers opened the cell door and
spayed Thomas with “OC” (which is commonly
referred to as pepper spray) to disorient him while they went
in and secured him. Thomas, however, charged the door, tried
to grab the OC canister, and tried to get out of the cell. In
the process, Thomas punched the officers and staff, struck
his forehead on the concrete floor, and tried to get
underneath his bunk.

After a
prolonged struggle, the officers were able to get Thomas into
restraints. Thomas said he would walk on his own with the
escort down the hallway. When they were in the stairway,
however, Thomas went limp and threw himself forward. The
officers were able to prevent him from falling.

Based
on the shift commander's order, Thomas was taken to
another housing unit and put into a restraint chair. Nurse
Denise Ryan arrived to treat Thomas's face wounds
sustained during the struggle with officers in his cell.
Thomas was transported to Elliot Hospital for treatment.
While in the hospital, Thomas tried to take the gun of the
officer on duty, which required him to be placed in
additional restraints.

Because
of his behavior, Thomas was assessed by mental health
providers, including Dr. Quentin Turnbull, a psychiatrist
with Manchester Mental Health. The purpose of the assessment
was to determine whether Thomas should be transferred to the
Secure Psychiatric Unit. Before that determination was made,
Thomas's father, John Dabilis, posted his bail early on
August 1, and Thomas was released from custody.

Thomas
was eventually found to be incompetent to stand trial on the
assault charges that had resulted in his detention at the
Hillsborough County Jail. As a result, the charges were
...

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